Opposition — League to Save Lake Tahoe, Inc. v. Trounday

In the Supreme Court

OF THE

United States a MIC ties | ERK

Ocroser TERM, 1979

=e *58)

LEAGUE TO SAVE LAKE TAHOE, INC., a California membership

corporation; CLaupiA CoruM; DONNA ATHERTON;

HILTON ATHERTON; JERRY FELDMILLER; MARILYN FELDMILLER;

Mark Litz; JoHN MCCAULEY; JOHN CALLISTER;

Bruce BOHLMAN; DELTA MAck; Pou. HANNIFAN;

Janet HANNIFAN; and Jerr Harry,

Petitioners,

VS.

Rocer S. Trounpay, Director of the Nevada Department of

Human Resources; STATE OF NEVADA;

NEVADA DEPARTMENT OF HUMAN RESOURCES;

Ouiver KAHLE; and TED JENNINGS,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

BREEN, YOUNG, WHITEHEAD, McDona.p, CARANO, WILSON,

TeRzIcH & BELDING BERGIN, BIBLE, FRANKOVICH, &

232 Court Street Hicks

Reno, Nevada 89501 241 Ridge Street

Attorneys for Respondent, P.O. Box 2670

Oliver Kahle Reno, Nevada 89505

Attorneys for Respondent

RICHARD BRYAN

Ted Jennings

Attorney General

State of Nevada

STEPHEN C. BALKENBUSH

Deputy Attorney General

Heroes Memorial Building

Carson City, Nevada 89710

Attorneys for Respondents,

State of Nevada

Nevada Department of

Human Resources

Roger S. Trounday,

Director of the Nevada

Department of Human

Resources

BOWNE-PERNAU WALSH ¢ 1045 SANSOME ST. © &S.F.,CA 94111 © (415) 981-7882

eg ER i De on

SUBJECT INDEX

Page

Issues presented for review 2235: 7....... 0... ccc ccc cee es 1

ak vans sop caecsce. 2

IE MI LEGAL. cs)s old 4 ig 525 ohyG OB Lois ors ce 2

Reasons why a writ of certiorari should not be granted .... 5

I

The Court of —— was correct in that Nevada's

complex source limitation was satisfied by issuance of a

—, notwithstanding that a proposed source might vio-

ate ambient air quality standards ...................... 6

ll

The Court of Appeals correctly concluded that appellants

failed to state a claim upon which relief could be granted 11

Ill

Appellants who desire redress in a federal forum for alleged

violation of the Nevada State Implementation Plan must

first exhaust their administrative remedies pursuant to the

Nevada State Implementation Plan .................... 14

EEE a 18

ii

TABLE OF AUTHORITIES CITED

Cases

Page

American Federation of Government Employees, Local 1668 v.

Dunn, 561 F.2d 1310 (9th Cir. 1977) .............0000... 16

California Tahoe Regional Planning Agency v. Jennings, et al.,

ey ime me CUR Ce UD ivi ce vce dees ss wcccapncs

Citizens Association of Georgetown v. Washington, 535 F.2d

pA RR RRR APD ter PR a OR ere 10

Hancock v. Train, 426 U.S. 167 (1976) .................... 8,9

McKart v. United States, 395 U.S. 185 (1969) .............. 15, 16

Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41 (1938) 15

New Mexico Citizens v. Train, 6 E.R.C. 2061 (D.N.M. 1974) 13

Plan for Arcadia, Inc. v. Anita Associates, 501 F.2d 390 (9th

Cir.), cert, denied, 419 U.S. 1034 (1974) ................ 13

Shell Oil Company v. Train, 585 F.2d 408 (9th Cir. 1978) .. 16

Tennessee v. Dunlap, 426 U.S. 312 (1976) ................ 12

Thompson v. Chicago, 7 E.R.C. 1682 (N.D. Ill. 1975) ...... 13

Train v. Natural Resources Defense Council, 421 U.S. 60, 95

SSE TAR CIOS Pe. STREP E IO, oS 7, 14

Regulations

Connecticut Revision 44 Fed. Reg. No. 19, p. 5425 (1979) .. 4

Nevada Air Quality Regulations, Section 2.10 .............. 3, 17

Rules

Nevada Environmental Commission Administrative Rules:

Satin dee Seyi kab cS ohn Cekd on were scene. cas 17

ET es BOT LA tk uF FAG TORTS ede 17

Rules of the Supreme Court of the United States, Rule 19 .... 5

Statutes

Clean Air Act (42 U.S.C.):

MED ate aod i hi, ORLA a daa Reed Whoa did cw eC a 8

eS at a a ae 2

Section 7401 a)(3) Patter eid ates awk ka ae we coke Lae eae 4

Eo gala 2a Mics alc biatiice J 14

I bss clan iby wa aah Shy Sasipiecatte tego oid 4

YASS UR SSR ge a DR Gl en on SMEDMERD ate ck 8,9

ea a, CCR his Saas ok @lakkoe oe 2, 6, 8, 9, 11, 12, 14

NE SO eis oc Wisco nip 20’ We Re DEA 7

i oi 5 v's. wien o's » vw eal pb ea ee 7,9

So os Ak hig as euiginh BAER CR tage Tied 9

Section 7604 3} MEE S EURO L LMA ee WES Td wee rec iik ll

iii

TABLE OF AUTHORITIES

STATUTES

Page

Nevada Revised Statute: .

ea ep se cew ss Pete i adage nhs os tors Uae eden sens

SET BALE) (BD)... nn nnn cece ever snerecerewsenceneces .

ee | eer ee Se hie whe ee ieane hawe os :

GABADB OF 9OG. 0.6 ccc cence rene eee eneeeeenees a

nl a & hd ON nye einem

eee N TEER ewe ee eA eS whoo. 17

On ie at aw eeu 17

ie hie aa ce ka ape | 17

Other Authorities

H.R. Conf. Rep. No. 95-564, 95th Congress, Ist Sess., 126

(August 3, 1977), Reprinted in 1977 U.S. Code Congress

and Administrative News 2636-37 .............:0seeeeee

In the Supreme Court

OF THE

United States

Octoser Term, 1979

No.

LEAGUE TO SAvE LAKE TAHOE, INC., a California membership

corporation; CLaupia CoruM; DONNA ATHERTON;

HILTON ATHERTON; JERRY FELDMILLER; MARILYN FELDMILLER;

Mark Litz; JoHN McCAULEY; JOHN CALLISTER;

Bruce BOHLMAN; DeLta MAck; Pam. HANNIFAN;

Janet HANnIFAN; and Jerr Harry,

Petitioners,

vs.

Rocer S. Trounpay, Director of the Nevada Department of

Human Resources; STATE OF NEVADA;

NEVADA DEPARTMENT OF HUMAN RESOURCES;

Ottver Kane; and Tep JENNINGS,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION TO

PETITION FOR WRIT OF CERTIORARI

Respondents, Roger S. /rounday, Director of the Ne-

vada Department of Human Resources; State of Nevada;

Nevada Department of Human Resources; Oliver Kahle;

and Ted Jennings, jointly file this Brief in Opposition to

the Petition for Writ of Certiorari.

ISSUES PRESENTED FOR REVIEW

1. Whether the Federal District Court has jurisdiction

to review an administrative determination of a State offi-

cial to issue a registration certificate in accordance with

the provisions of a state implementation plan.

2

2. Whether an alleged violation of an ambient air qual-

ity standard constitutes a violation of an “emission limita-

tion” within the meaning of § 304 of the Clean Air Act (42

U.S.C. 7604).

3. Whether Appellants are entitled to judicial review

of administrative action if they fail to pursue the admin-

istrative remedies available under a state implementation

plan.

4. Whether the Nevada complex or indirect source

review regulations remain enforceable in light of an express

statutory prohibition.

STATUTES INVOLVED

The statutes involved are the Federal Clean Air Act (42

U.S.C. 7401 et seq.) and the Nevada Air Quality Regula-

tions adopted pursuant to the Federal Clean Air Act.

STATEMENT OF THE CASE

This action was commenced by the League to Save Lake

Tahoe (hereinafter “League”) under the citizen suit pro-

visions of the Clean Air Act seeking judicial review of the

issuance by Respondent Trounday, the Director of the

Nevada Department of Human Resources, of Registration

Permits to Respondents Jennings and Kahle, in accordance

with the Nevada State Air Quality Regulations.

Prior to 1977, the Nevada Air Quality Regulations (Ap-

pendix A) which constitute Nevada’s State Implementation

Plan (SIP), adopted pursuant to the mandates of the Clean

Air Act, required developers of complex or indirect sources

of air pollution to obtain a Registration Certificate prior

to the commencement of construction.

On August 12, 1974, both Jennings and Kahle made ap-

plications for Registration Certificates for the parking fa-

3

cilities associated with their respective projects, The League

participated in the administrative review process by Troun-

day. Trounday required additional submittals and project

modifications of both Jennings and Kahle. After over eight

months of review, Trounday issued the regis‘ration cer-

tificates to Jennings and Kahle on April 15, 19.4, and May

19, 1975, respectively. One year later, on May 3, 1976, the

League commenced this action seeking judicial review of

the decision of Trounday to issue the certificates, alleging

that Trounday “abused his discretion” and that the regis-

tration permits will result in prospective violation of the

ambient air standards. The League did not pursue admin-

istrative remedies available under the Nevada Air Quality

Regulations. Administrative procedures are available to

review any decision by Trounday in issuing a registration

certificate. Both Nevada Revised Statute 445.498 et seq.

(Appendix B) and Section 2.10 of the Nevada Air Quality

Regulations provide for appeals by an aggrieved party

from the issuance of any such order to the Nevada Environ-

mental Commission. When such an appeal is requested, the

Nevada Environmental Commission is required to hold a

public hearing and may subpoena witnesses and take testi-

mony under oath and make a complete factual record and

findings. (Appendix D). The League completely ignored

all administrative remedies, and then one year after the

subject permits were issued commenced the within action.

Indirect source review provisions have always been a

subject of some controversy under the Clean Air Act. At

last count, only eight states have an active indirect source

review program and four other states have taken the steps

necessary to eliminate indirect source review from their

4

respective implementation plans. (See Connecticut Revision

44 Fed. Reg. No. 19, p. 5425 (1979)). The 1977 amendments

to the Clean Air Act revoke all authority of the EPA over

indirect review programs except for federal projects. 42

U.S.C. § 7410a(5) (A). Indirect source review programs are

no longer recognized as an important or effective means

of air quality regulations. Thus, the present case has little

or no precedential value and even less national significance.

In 1977, the Nevada State Legislature revoked all au-

thority to review indirect sources. Nevada Revised Statute

445.493 (Appendix B). Nevada’s revocation of its indirect

source review regulations, together with the 1977 amend-

ments to the Clean Air Act, raise a substantial question

as to whether the present case presents a justiciable con-

troversy. The 1977 amendments to the Clean Air Act gave

authority to the states to revoke any existing indirect

source review procedures contained in an SIP. This is

clearly demonstrated by the following excerpt from the

Congressional Record:

“The Conferees [House and Senate Conference Com-

mittee] agreed to modify the House provision which

restricts the authority of the administrator to require

indirect source review programs as part of the state

implementation plan. The administrator, under the

Conference provision, would be prohibited outright

from requiring indirect source review programs, either

directly or indirectly, except with respect to federally

funded projects.

“This prohibition extends to the administrator’s au-

thority to require as a condition for approval the in-

clusion or retention of these programs in a state

implementation plan as well as the authority of the

5

administrator to promulgate plans or regulations

which includes such programs... . i

“Under the conference provision, any state or local

government may adopt and enforce an indirect source

program if it chooses. Any state or local government

which has such a program would be free to leave such

program in effect. The administrator may approve or

enforce an indireet source program if it is adopted

and submitted by a state. Any such program which has

already been approved by the administrator may re-

main part of the applicable implementation plan. How-

ever any state at any time may suspend or revoke such

a program.” (Emphasis added). H.R. Conf. Rep. No.

95-564, 95th Congress, 1st Sess., 126 (August 3, 1977),

Reprinted in 1977 U.S. Code Congress and. Adminis-

trative News 2636-37.

Thus, there is no longer any enforceable indirect source

review provision under the Nevada SIP, and a decision

in this case in favor of Petitioners would have no meaning.

REASONS WHY A WRIT OF CERTIORARI

SHOULD NOT BE GRANTED

Petitioners have not specified any reason for the granting

of a Writ of Certiorari in accordance with Rule 19 of this

Court. The decision of the Ninth Circuit Court of Appeals

is not in conflict with any decision of another court of

appeals or with any applicable decisions of this Court. Ap-

parently, Petitioners contend that this case involves an im-

portant question of Federal law which has not been, but

should be settled by this Court. However, this case involves

a judicial review of an administrative decision of a Nevada

state official which decision was rendered under provsions

6

of the Nevada SIP which are no longer in effect. Thus,

there is no question of federal law of sufficient import to

warrant review by this Court.

I

THE COURT OF APPEALS WAS CORRECT IN RUL-

ING THAT NEVADA’S COMPLEX SOURCE LIMITA-

TION WAS SATISFIED BY THE ISSUANCE OF A

PERMIT, NOTWITHSTANDING THAT A PROPOSED

SOURCE MIGHT VIOLATE AMBIENT AIR QUALITY

STANDARDS

Petitioners contend that notwithstanding the fact that

Respondents Kahle and Jennings complied with all aspects

of Nevada’s State Implementation Plan in securing regis-

tration certificates, the mere allegation that Respondent

Trounday (Director of Department of Human Resources)

failed to consider CO levels under the most adverse

meteorological condition and that construction will cause

violation of ambient air standards for CO, states a claim

for relief under the Citizens Suit Provisions of the Clean

Air Act. (42 U.S.C..7604). It is respectfully submitted their

contention is untenable for reasons stated hereinafter.

Petitioners complain that the Court of Appeals (1) shows

a fundamental misunderstanding of Petitioner’s claim and

the nature of a Citizens Suit under the Clean Air Act (Pe-

titioners’ brief, Page 14) and (2) fails to grasp the distine-

tion between the substantive limitation and procedural

enforcement mechanism (Petitioners’ Brief, Page 15).

In reply thereto, it is respectfully submitted that Peti-

tioners are the ones with the fundamental misunderstand. °

7

ing of the nature of a Citizens Suit under the Clean Air

Act and the limitations upon the bringing of such suit.

The right to sue under Section 304(a) of the act may be

exercised against any person “Alleged to be in violation

of (A) an emission standard or limitation under this Chap-

ter or (B) an Order issued by the Administrator of a State

with respect to such a standard or limitation.”

When Petitioners commenced their suit in 1976, Section

304(f) defined “Emission Standard or Limitation” as “A

schedule or timetable of compliance, emission limitation,

standard of performance, or emission standard,” or “a con-

trol or prohibition respecting a motor fuel or fuel ad-

ditive. ...”

The term “Emission Limitation” was generally inter-

preted by the Courts to include only specific restrictions

on the composition of pollutants, which may be emitted

into the air from a particular source or class of sources.

See Train v. Natural Resources Defense Council, 421 U.S.

at 79, 95 S.Ct. at 1481.

In referring to the restrictive definition of “Emission

Standard or Limitation.” the Ninth Circuit stated, “Strictly

applied, these restrictive definitions of ‘emission standard

or limitation’ might effectively foreclose Appellant’s conten-

tion that the indirect source permitting procedure alleged

to have been violated in this case is an ‘emission limitation,’

and, were there no subsequent amendments of the Act, we

would be compelled in this case to find no jurisdiction under

Section 204.” (Petitioners’ Appendix B, Page 8).

The Ninth Circuit went on to hold that since the decision

of the District Court, Section 304(f) (42 U.S.C. 7604(f))

8

has been amended, and the definition of “emission standard

or limitation” substantially extended. This expansion

broadened Federal Jurisdiction to include an alleged vio-

lation of any condition or requirement of a State Imple-

mentation Plan relating to “transportation control measures

or air quality maintenance plans.”

The Ninth Cireuit held, in effect, that subject matter

jurisdiction had been retroactively granted. However, none

of the authorities relied upon by the Ninth Circuit dealt

with the question of whether a court’s subject matter juris-

diction can be retroactively expanded. In addition, a proper

analysis of the 1977 amendments to the Clean Air Act in-

dicate that the expanded definition of emission limitation

does not include indirect source review programs of park-

ing garages.

The 1977 amendments to the Clean Air Act do not ex-

pand the citizen suit provisions to include preconstruction

permit requirements for indirect sources. In Hancock v.

Train, 426 U.S. 167 (1976), this Court held that the “re-

quirements” with which a federal facility must comply

under Section 118 of the Clean Air Act (42 U.S.C. § 1718)

were the same as the emission standards and limitations

for which citizens suits were authorized under Section 304

of the Clean Air Act (42 U.S.C. § 7604). This Court went

on to hold that the preconstruction permit procedure in

question in Hancock was not within those “requirements”

and, thus, was not an emission limitation or standard. In

response to the Hancock case, Congress acted to expand

the definition of “requirements” contained in 42 U.S.C.

§ 7418 to include all requirements, whether substantive or

procedural, including “any requirement respecting per-

9

mits.” Congress thereby clearly provided that federal facil-

ities must now comply with the permit procedures

contained in a state implementation plan. On the other

hand, when Congress amended the definition of emission

limitation under the citizens suit provisions of the Clean

Air Act (42 U.S.C. § 7604(f)), it did not include any pre-

construction or permit requirements for indirect sources.

Indeed, Congress expanded the definition of emission limi-

tation to specifically include a requirement for a permit

under Part C of Subchapter I of the Act. 42 U.S.C.

§ 7604(f)(2). That permit is-not, however, applicable in

the present case. Congress did not make the same provision

in the expanded definition of emission limitation as it did

in the case of the definition of “requirements” to include

all permit requirements. The specific inclusion of a permit

requirement in the amendments to 42 U.S.C. § 7418 and the

absence of such a provision in the citizens suit section is a

clear indication of Congressional intent not to change this

Court’s decision in Hancock v. Train with respect to the

limitations on citizens suits seeking judicial review of pre-

construction permits for indirect sources.

Petitioners predicate their right to sue under Section

304 on the fallacious assumption that violation of an am-

bient Air Quality standard is ipso facto a violation of

an emission limitation. This is clearly not the case. As the

Cireuit Court stated, “To adopt their view would not only

contravene the principal that such air quality standards

are not emission limitations (Citations omitted) but would

also sanction Federal jurisdiction based solely upon alle-

gations of a prospective violation of the ambient air qual-

ity standards. (Petitioners’ Appendix B, Page 14)

10

Emission standards or limitations were meant to estab-

lish “objective evidentiary standards,” which would have

to be met by Plaintiffs in citizens suits.” Citizens Associ-

ation of Georgetown v. Washington, 535 F.2d 1318, 1322

(D.C. 1974). The Circuit Court found that “these objective

standards” include the procedural provisions of the Nevada

State Implementation Plan.

In the District Court decision, Judge Thompson stated,

“The Congressional findings state: ‘That the prevention

and control of air pollution out of source is the primary

responsibility of States and local governments.’” (Peti-

tioners’ Appendix A, Page 7)

He further defined the federal-state relationship saying:

“There are other provisions of the statutory and regula-

tory swamp which support the Congressional intent to

defer to approved State regulatory procedures in admin-

istration, maintenance and enforcement of ambient air

quality requirements.” (Petitioners’ Appendix A, Page 9)

It is respectfully submitted that there was complete com-

pliance with all of the requirements of the Nevada Plan,

and Petitioners are simply attempting, through this action,

to obtain in Federal Court review of an administrative de-

cision entrusted by Congress to state officials. The mere

allegation of a prospective violation of an ambient air

quality standard cannot thusly be used as a basis for Fed-

eral jurisdiction,

11

THE COURT OF APPEALS CORRECTLY CONCLUDED

THAT APPELLANTS FAILED TO STATE A CLAIM

UPON WHICH RELIEF COULD BE GRANTED

In a carefully drafted and instructive opinion, the Court

of Appeals decided that the indirect source review require-

ments of Nevada’s SIP constituted an “emission standard

or limitation” under § 304(f)(3), 42 U.S.C. § 7604(f) (3).

(Petitioners’ Appendix B, p. 11) In essence, the Court of

Appeals decided that the District Court had jurisdiction

under § 304, 42 U.S.C. § 7604, to consider the alleged vio-

lations of the Nevada indirect source regulations. (Peti-

tioners’ Appendix B, p. 13) After having found that the

District Court had jurisdiction to consider alleged viola-

tions of Nevada indirect source regulations, it is important

to note that the Court of Appeals went no further. Instead,

the Court of Appeals exhibited a great deal of insight in

deciding that although the District Court could lawfully

have considered the alleged violations of the Nevada in-

direct source regulations, a thorough and exhaustive analy-

sis of appellants’ complaint demonstrated total compliance

with the Nevada indirect source regulations.

In an attempt to circumvent the Court of Appeals de-

cision, the appellants incorrectly characterize their second

issue before this Court. (Petition for Writ of Certiorari,

p. 4) The appellants couch their second issue in the ab-

stract in an attempt to eliminate this Court’s consider-

ation of the extremely important facts in the case at bar.

More importantly, however, appellants in requesting this

learned Court to rule on whether a citizen suit under the

Clean Air Act § 304 is merely a procedure to review a

12

state agency determination, or whether it constitutes a dis-

tinct, independent cause of action when a state has issued

a permit under its implementation plan, raise for the first

time in this litigation this abstract issue. As recognized by

this Court in Tennessee v. Dunlap, 426 U.S, 312, 314 n.2,

315 n.3 (1976), due to the fact that appellants’ second issue

was not pleaded in appellants’ complaint and was not con-

sidered by the District Court or the Court of Appeals, it

is not now properly before this Court.

Not only is the appellants’ second issue not properly

before this Court at this late stage, but in its present broad

posture need not be answered in order to support the Court

of Appeals decision. Indeed, appellants have either created

a masterful smoke screen in presenting their second issue

or have failed to understand the succinct and straightfor-

ward language of the Court of Appeals.

In resolving the case at bar, the Court of Appeals in no

way, shape or form concluded that a citizen suit under

the Clean Air Act § 304, 42 U.S.C. § 7604, is merely a pro-

cedure to review a state agency decision. Instead, as has

long been recognized, the Court of Appeals ruled that

without having first exhausted their administrative reme-

dies pursuant to the federally promulgated State Imple-

mentation Plan (See discussion under Section III, infra)

and by failing to allege facts constituting a violation of a

specific emission limitation (Petitioners’ Appendix B, p.

16) appellants were not entitled to relief in a federal forum.

Not only did appellants fail to establish facts which con-

stitute a violation of a specific emission limitation but

instead through pleading their alleged cause of action af-

firmatively established compliance by the State of Nevada

13

with the procedural and enforcement requirements of its

state implementation plan. (Amended Complaint, Appen-

dix C, Paragraphs 12 and 13) ;

As correctly noted by the Court of Appeals, appellants

argue that when the two hotel casinos are constructed they

will violate applicable ambient air quality standards for

carbon monoxide and, therefore, by issuing the required

registration certificates the respondents have violated an

emission standard or limitation. (Appendix C, pp. 5-7)

However, as depicted by the Court of Appeals, appellants’

argument demonstrates a fundamental misunderstanding

of the long recognized difference between a violation of an

ambient air quality standard and a violation of an emission

standard or limitation. Plan for Arcadia, Inc. v. Anita As-

sociates, 501 F.2d 390, 392 (9th Cir.), cert. denied, 419

U.S. 1034 (1974); Thompson v. Chicago, 7 B.R.C. 1682

(N.D. Ill. 1975); New Mezico Citizens v. Train, 6 E.R.C.

2061, 2064 (D.N.M. 1974). The appellants have not and in

fact could not allege a violation of an emission standard

or limitation because respondents have complied with the

Nevada SIP in all respects. In light of this fact, appellants

concocted, as the basis for their cause of action, a prospec-

tive violation of the ambient air quality standard for car-

bon monoxide. (Appendix C, p. 7) Much to the appellants’

chagrin, a prospective violation of the ambient air quality

standards does not repose in the federal courts any sub-

ject matter jurisdiction. Thompson v. Chicago, supra, and

New Mezico Citizens v. Train, supra at 2064.

In affirming the District Court’s decision dismissing the

appellants’ complaint, the Court of Appeals incisively ruled

that respondents complied in every respect with the Nevada

14

SIP and that therefore appellants had failed to allege facts

which constituted a violation of a specific emission limita-

tion. The Court of Appeals did not find that a citizen suit

under $ 304 of the Clean Air Act (42 U.S.C. § 7604) was

merely a procedure to review a state agency action. Accord-

ingly, a determination by this Court of appellants’ second

issue is unnecessary.

Il

APPELLANTS WHO DESIRE REDRESS IN A FED.-

ERAL FORUM FOR ALLEGED VIOLATION OF THE

NEVADA STATE IMPLEMENTATION PLAN MUST

FIRST EXHAUST THEIR ADMINISTRATIVE REM-

EDIES PURSUANT TO THE NEVADA STATE IM.

PLEMENTATION PLAN

In attempting through this action to obtain Federal

Court review of an administrative decision entrusted by

Congress to state officials, appellants are seeking to en-

force those portions of Nevada’s SIP which they believe

will enhance their position while at the same time wholly

disregarding those sections which preclude this action, (Pe-

titioners’ Appendix B, p. 15, Train v. Natural Resources

Defense Council, 421 U.S. 60, (1975) and 42 U.S.C.

7401(a)(3), 7407(a). The appellants have continually as-

serted that the Nevada SIP is federal law, and if it is, so

are all the administrative procedures provided therein.

Accordingly, appellants’ abusive practice of “picking and

choosing” those provisions of the Nevada SIP with which

they will and will not comply cannot be condoned by this

or any other court.

ae =

15

In citing allegedly relevant portions of the Nevada SIP,

appellants conspicuously omit what are perhaps the most

important sections. Those omitted portions address the

comprehensive administrative review process under the

Nevada SIP. (Appendix D sets forth the State of Nevada

Environmental Commission Administrative Rules and

Appendix B sets forth the Nevada Revised Statutes which

govern both the administrative and judicial review proc-

esses in the Nevada SIP).

In looking at appellants’ tenuous position, it becomes

readily apparent why appellants chose to mention only

those portions which proved beneficial to them. However,

as recognized by this Court as long ago as 1938, it is “[t]he

long-settled rule of judicial administration that no one is

entitled to judicial relief for a supposed or threatened

injury until the prescribed administrative remedy has been

exhausted. [citations]” Myers v. Bethlehem Shipbuilding

Corp., 303 U.S. 41, 50-51 (1938). The sound policy for this

long-settled rule is found in the case of McKart v, United

States, 395 U.S. 185 (1969) wherein this Court stated the

following:

“The agency, like a trial court, is created for the pur-

pose of applying a statute in the first instance. Ac-

cordingly, it is normally desirable to let the agency

develop the necessary factual background upon which

decisions should be based. Since agency decisions are

frequently of a discretionary nature or frequently re-

quire expertise, the agency should be given the first

chance to exercise that discretion or to apply that

expertise.

~

°

16

“Particularly, judicial review may be hindered by the

failure of the litigant to allow the agency to make a

factual record, or to exercise its discretion or apply

its expertise. In addition, other justifications for re-

quiring exhaustions . . . have nothing to do with the

dangers of interruption of the administrative process.

_ . Certain very practical notions of judicial efficiency

come into play as well. A complaining party may be

successful in vindicating his right to the administra-

tive process. If he is required to pursue his admin-

istrative remedies, the court may never have to inter-

vene. And notions of administrative autonomy require

that the agency be given the chance to discover and

_ correct its own errors. Finally, it is possible that fre-

quent and deliberate flouting of the administrative

process could weaken the effectiveness of the agency

by encouraging people to ignore its procedures.” Id.

at 193-195.

Accordingly, having been provided with this guidance from

this Court, the learned United States Court of Appeals for

the Ninth Circuit has continually recognized this long-

settled rule (See American Federation of Government Em-

ployees, Local 1668 v. Dumn, 561 F.2d 1310, 1314-15 (9th

Cir. 1977) ; Shell Oil Company v. Train, 585 F.2d 408, 414

(9th Cir. 1978); and California Tahoe Regional Planning

Agency v. Jennings, et al., 594 F.2d 181, 190-92 (9th Cir.

1979)) and under the facts of the case at bar, correctly

decided that any administrative determination made by

Nevada officials pursuant to provisions of the Nevada SIP,

should be appealed through the administrative review pro-

cedures as set forth in the Nevada SIP.

The Nevada SIP provides that an appeal of any action

of Trounday may be taken directly to the Nevada Environ-

17

mental Commission. Nevada Revised Statutes 445.501

(Appendix B; § 2.10 of the Nevada-Air Quality Regula-

tions (Appendix A). In addition to having a right of ap-

peal, an aggrieved party is entitled to an immediate hear-

ing on their appeal which must be conducted within twenty

(20) days after a receipt of request for a hearing. Rule 9,

State of Nevada Environmental Commission Administra-

tive Rules. (Appendix D) In requiring an aggrieved party

to file a notice of appeal within ten (10) days after notice

of action of the department, (See NRS 445.498 and Rule 8,

State of Nevada Environmental Commission Administra-

tive Rules) as well as providing a hearing therein within

twenty (20) days of receipt of request for hearing (See

NRS 445.499 and Rule 9, State of Nevada Environmental

Commission Administrative Rules), the Nevada SIP fur-

nishes a comprehensive mechanism for an expedited re-

view. Both the Nevada Revised Statutes and the Nevada

Environmental Commission Administrative Rules provide

that when an appeal is taken the Commission may sub-

poena witnesses, take testimony under oath, and make a

complete factual record and findings. NRS 445.599 and

Nevada Environmental Commission Administrative Rules

9-15. It is readily apparent that through this exhaustive

administrative scheme, appellants had adequate adminis-

trative remedies available. The review of Trounday’s deci-

sion under the Nevada SIP does not end with the Nevada

Environmental Commission. Any decision or order of the

Environmental Commission is subject to judicial review in

accordance with NRS 233(B) which is the Nevada Admin-

istrative Procedures Act. (Appendix B) Through their

amended complaint, appellants alleged that Trounday’s de-

cision constituted an abuse of discretion; however, despite

18

the fact that the Nevada SIP through NRS 233B.140(5)(b)

specifically provides for reversal of Trounday’s decision if

said decision constituted an abuse of discretion, appellants

made absolutely no attempt to follow this portion of the

Nevada SIP. Having intentionally failed to follow the

administrative and judicial review processes in the Nevada

SIP, as approved by EPA, the appellants came knocking

at the doors.of the federal court, which are and should

remain closed. : tiny

_. CONCLUSION

This case is another in a continuing series of harassing

litigation brought by Petitioners against Respondents over

the last five years, It lacks merit; it does not. involve .an

important question of Federal law; it does not conflict with

a decision of another Court of Appeals. This is not an

appropriate case for this Court to exercise its discretion-

ary review authority. It is therefore respectfully submit-

ted that the Petition For Writ of Certiorari be denied.

Dated, 4 October 1979.

BREEN, YOUNG, WHITEHEAD, McDona.p, Carano, WILSON,

Terzicu & BELDING Bercin, BIBLE, FRANKOVICH, &

Attorneys for Respondent, Hicks

- > Oliver Kahle Attorneys for Respondent

RicHARD BRYAN Ted Jennings

STEPHEN C. BALKENBUSH

Attorneys for Respondents,

State of Nevada

Nevada Department of

Human Resources

Roger S. Trounday,

Director of the Nevada

Department of Human.

Resources

bese lee”

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-

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ek

Appendices

7

Appendix A

State of Nevada

Air Quality Regulations

October 1976

Amended February 1977

Amended April 1977

Amended May 1977

John Fransway, Chairman

Ellen Shirley

William C. Vincent

Thorne Butler, M.D,

Roland Westergard

Thomas Ballow

Glen Griffith

Lowell Smith

Clark H. Tester

Ken Boyer, Executive Secretary

Adopted By

Nevada State Environmental Commission

John Fransway, Chairman

Administered By

Department of Human Resources

, Roger Trounday, Director

Environmental Protection Services

E. G. Gregory, Acting Administrator

Carson City, Nevada

and

Department of Motor Vehicles

Howard Hill, Director

Carson City, Nevada

A-2

2.8.7—All administrative fines collected by the Commis-

sion pursuant to these regulations shall inure to and be

deposited in the county school district fund of the county

in which the violation occurred.

2.9—Time for Compliance:

2.9.1—All new and existing sources shall comply with

these regulations. Existing sources are in compliance with

these regulations and may continue to operate under

the provisions of their approved ‘compliance schedules,

which may be amended from time to time.

2.92—Compliance schedules shall contain specific prog-

ress steps that will be taken toward achieving compliance.

: 2.9.3—The Commission may require periodic reports on

each phase of progress under approved compliance sched-

ules. Failure at any phase to make diligent and reasonable

progress toward compliance with the approved compliance

schedule shall be deemed an unreasonable delay and shall

subject the operator of the source to administrative fines

as provided in Article 2.8.2 of these regulations.

2.9.4—In approving compliance schedules, the Commis-

sion shall take into consideration the social and economic

impact of the schedule, including, but not limited to, impact

on availability of fuels, energy, transportation, and

employment. |

2.9.5—When in the opinion of the Director there is a

violation of any provision of these regulations or approved

compliance schedule, he shall cause a written notice to be

served upon the person responsible for the alleged

violation. tig :

A-3

2.9.6.—The written notice shall specify the provision of

these regulations or the approved compliance schedule that

is being violated and the facts constituting the alleged

violation. It may include an order to take corrective action

or require submission of a schedule for compliance within

a specified reasonable time. Such order shall become final

unless within 10 calendar days after service of the written

notice, the person named in the order requests a hearing

before the Commission.

2.9.7—With or without the issuance of an order to take

corrective action or require submission of a schedule for

compliance within a specified reasonable time, the Director

may require the person to appear before the Commission

at a specified time or place or the Commission may initiate

action to levy the appropriate fine.

2.10—Appeals of the Director’s Action:

2.10.1—Any person aggrieved by:

2.10.1.1—The issuance, denial, renewal, suspension, or

revocation of an operating permit; or

2.10.1.2—The issuance, modification, or rescission of any

other order, by the Director, may appeal to the Commis-

sion.

2.10.2—The Commission shall decide the appeal.

2.10.3—The Commission shall provide, by rule, for the

time and manner in which appeals are to be taken to the

Commission.

2.10.4—Application forms for appeal shall be obtained

from the Director.

g

A-4

2.11—Variances:

2.11.1—The owner or operator of a source of air con-

taminant or a person who desires to establish such a source

may apply to the Commission for a variance from its

applicable regulations. The Commission may grant a vari-

ance only if, after public hearings on due notice, it finds

from a preponderance of the evidence that:

2.11.1.1—The emissions occurring or proposed do not

endanger or tend to endanger human health or safety; and

2.11.1.2—-Compliance with the regulations would produce

serious hardship without equal or greater benefits to the

public.

2.11.2—A variance shall not be granted unless the Com-

mission has considered the relative interest of first, the

public; second, other owners of property likely to be

affected by the emission; and last, the applicant. .

2.11.3—The Commission may, in granting a variance,

impose appropriate conditions upon an applicant and may

revoke the variance for failure to comply.

2.11.4—A variance may be renewed only under circum-

stances and upon conditions which would justify its origi-

nal granting.

2.11.4.1—Application for any renewal must be made at

least 60 days prior to expiration of the variance to be

renewed, and the Commission shall give public notice of

the application.

2.11.4.2—If a protest against the renewal is filed with the

Commission, the Commission shall hold a public hearing

| |

A-5

~* and shall not renew the variance unless it makes specific

written findings of fact which justify the renewal.

2.11.5—The following limitations of duration apply to all

variances :

2.11.5.1—If the variance is granted because no practical

means are known or available for prevention, abatement,

or control of the air pollution involved, the variance shall

continue only until such means become known and avail-

able.

2.11.5.2—If the variance is granted because compliance

with applicable regulations will require measures which,

because of extent or cost, must be spread over a period of

time, the variance shall be granted only for the requisite

period as determined by the Commission and shall specify

the time when the successive steps are to be taken.

a ee ea

Appendix B

WATER CONTROLS; AIR POLLUTION

445.486 Compelling attendance of witnesses at hear-

ings; contempt; compensation of witnesses.

6 1. The district court in and for the county in which any

hearing is being conducted may compel the attendance of

witnesses, the giving of testimony and the production of

books and papers as required by any subpena issued by

the chairman of the hearing.

2. In case of the refusal of any witness to attend or

testify or produce any papers required by such subpena

the chairman may report to the district court in and for

the county in which the hearing is held, by petition setting

forth:

(a) That due notice has been given of the time and place

of attendance of the witness or the production of the books

and papers;

(b) That the witness has been subpenaed in the manner

prescribed in NRS 445.401 to 445.601, inclusive ; i

(c) That the witness has failed and refused to attend

or produce the papers required by subpena in the hearing

named in the subpena, or has refused to answer questions

propounded to him in the course of such hearing,

and asking an order of the court compelling the witness

to attend and testify or produce the books or papers in

the hearing.

3. The court, upon petition of the chairman, shall enter

an order directing the witness to appear before the court

B-2

at a time and place to be fixed by the court in such order,

the time to be not more than 10 days from the date of the

order, and then and there show cause why he has not at-

tended or testified or produced the books or papers in the

hearing. A certified copy of the order shall be served upon

the witness. If it appears to the court that the subpena was

regularly issued by the chairman, the court shall thereupon

enter an order that the witness appear in the hearing. at

the time and place fixed in the order and testify or produce

the required books or papers, and upon a failure to obey

the order the witness shall be dealt with as for contempt

of court.

4. Witnesses may be compensated in the amounts pro-

vided in NRS 50.225.

(Added to NRS by 1971, 1195; A 1973, 1816)

Enforcement Provisions

445.491 Registration, report of air contaminant sources;

notice, approval of proposed construction; operating per-

mits; failure of commission to act does not excuse

violations.

1. The commission shall by regulation:

(a) Require the person operating or responsible for the

existence of each source of air contaminant, generally or

within a specified class or classes, to register and to report:

(1) The location of the source;

(2) The size and height of outlets;

(3) The process employed;

(4) The fuel or fuels used;

(5) The nature, rate and duration of emissions; and

B-3

(6) Such other information relevant to possible air

pollution as the commission may specify, if such informa-

tion can reasonably be made available.

(b) Require that written notice be given to the director

prior to the construction, installation, alteration or estab-

lishment of any source of air contaminant or of any speci-

fied class or classes of such sources, or the alteration of

any device intended primarily to prevent or reduce air

pollution. If within the time prescribed by regulation the

director determines that:

(1) The proposed construction, installation, alteration or

establishment will not be in accordance with the provisions

of the plans, specifications and other design material

required to be submitted under NRS 445.401 to 445.601,

inclusive, or applicable rules and regulations; or

(2) The design material or the construction itself is of

such a nature that it patently cannot bring such source

into compliance with NRS 445.401 to 445.601, inclusive, or

applicable rules and regulations, the director shall issue

an order prohibiting the construction, installation, altera-

tion or establishment of the air contaminant source or

sources.

(c) Require operating permits for any source.

2. The commission shall by regulation provide for the

issuance, renewal, revocation and suspension of operating

permits, and it may charge appropriate fees for their

issuance.

3. Any failure of the commission or the department to

issue a rule, regulation or order to prohibit any act does

B-4

not relieve the person so operating from any legal respon-

sibility for the construction, operation or existence of the

source of air contaminant.

4. All administrative fees collected by the commission

from stationary sources pursuant to subsection 2 shall be

deposited in the general fund of the state. This subsection

shall not apply to political subdivisions or their agencies.

(Added to NRS by 1971, 1196; A 1973, 1816)

445.493 Limitations on enforcement of regulations as to

indirect sources and authority to review new indirect

sources.

1. No regulation adopted pursuant to any provision of

NRS 445.401 to 445.601, inclusive, may be enforced as to

indirect sources if it is more stringent with respect to the

size cutoffs established for designated areas pursuant to

the United States Clean Air Act of 1963 and the rules and

regulations adopted in furtherance thereof. |

2. Except as provided in subsection 3, if the United

States Environmental Protection Agency delays the effec-

tive date for enforcement of its indirect source regulations

beyond January 17, 1977, the authority of a state agency

or district board of health to review new indirect sources

shall expire. Those projects approved prior to that date

shall continue under the guidelines established in their

permit.

3. If the federal indirect source regulations become

effective after January 17, 1977, then:

(a) The authority of a state agency to review new

indirect sources may be exercised only:

B-5

(1) In the enforcement of the federal indirect source

regulations; and

(2) To the extent enforcement by the state agency is

required by the federal act.

(b) The governing body of each county and each in-

corporated city may enforce within its jurisdiction the

federal indirect source regulations or any indirect source

regulations it adopts which are no more strict than the

federal indirect source regulations, to the extent such local

enforcement is not inconsistent with the requirements of

the federal act.

(Added to NRS by 1975, 1781; A 1977, 1559)

445.496. Approval of plans, specifications prerequisite

to construction, alteration of structure.

1. The commission shall require, with respect to all

sources of air contaminant, including indirect sources, that

plans, specifications and such other information as the

commission may direct be submitted to the director not

later than a specified interval prior to the construction or

alteration of a building or other structure if such construc-

tion or alteration includes the establishment or alteration

of a source or indirect source of air contaminant.

2. The local government authority, if any, responsible

for issuing any required building permit shall not issue

such building permit until the registration has been made

pursuant to regulation and no stop order prohibiting such

construction or alteration hag been issued.

(Added to NRS by 1971, 1407;.A 1973, 1817; 1977, 1559)

B-6

445.497 Notice of regulatory action: Requirement;

method; contents of notice. When the department takes

any regulatory action, under the provisions of NRS 445.401

to 445.601, inclusive, or under any rule, regulation, order

or standard based thereon, it shall give reasonable notice

to all parties by certified mail, which notice shall state the

legal authority, jurisdiction and reasons for the action

taken.

_ (Added to NRS by 1973, 1809)

445.498 Appeals to commission: Notice of Appeal. A

party aggrieved may file notice of appeal with the commis-

sion within 10 days after the date of notice of action of the

department, except as otherwise provided by law.

(Added to NRS by 1973, 1809)

445.499 Appeals to commission: Hearings.

1. Within 20 days after receipt of the notice of appeal

provided for in NRS 445.498, the commission shall hold

a hearing.

2. Notice of the hearing shall be given to all affected

parties no less than 5 days prior to the date set for the

hearing. )

3. The commission may sit en banc or in panels of three

or more to conduct hearings.

4. The attendance of witnesses and the production of

documents may be subpenaed by the commission at the re-

quest of any party. Witnesses shall receive the fees and

mileage allowed witnesses in civil cases. Costs of subpenas

shall be taxed against the requesting party.

—————

a ——————————————————————————

ee a ee we

B-7

5. All testimony shall be given under oath, and recorded

verbatim by human or electronic means.

6. For the purpose of judicial review under NRS 445.

571, the parties may agree upon a statement of facts in lieu

of a transcript of testimony.

7. Costs of transcribing proceedings of the commission

shall be taxed against the requesting party.

(Added to NRS by 1973, 1809)

445.501 Appeals to commission: Appealable matters;

commission action; rules for appeals.

1. Any person aggrieved by:

(a) The issuance, denial, renewal, suspension or revoca-

tion of an operating permit; or

(b) The issuance, modification or rescission of any other

order, by the director may appeal to the comunission.

2. The commission shall affirm, modify or reverse any

action taken by the director which is the subject of the

appeal.

3. The commission shall provide by rule for the time

and manner in which appeals are to be taken to the com-

mission.

(Added to NRS by 1971, 1197; A 1973, 1818; 1977, 69)

ADMINISTRATIVE PROCEDURE ACT

233B.127 Application of chapter to grant, denial or re-

newal of licenses; summary suspension of licenses.

1. When the grant, denial or renewal of a license is

required to be preceded by notice and opportunity for hear-

B-8

ing, the provisions of this chapter concerning contested

cases apply.

2. When a licensee has made timely and sufficient appli-

cation for the renewal of a license or for a new license

with reference to any activity of a continuing nature, the

existing license does not expire until the application has

been finally determined by the agency, and, in case the

application is denied or the terms of the new license lim-

ited, until the last day for seeking review of the agency

order or a later date fixed by order of the reviewing court.

3. No revocation, suspension, annulment or withdrawal

of any license is lawful unless, prior to the institution of

agency proceedings, the agency gave notice by certified

mail to the licensee of facts or conduct which warrant the

intended action, and the licensee was given an opportunity

to show compliance with all lawful requirements for the

retention of the license. If the agency finds that public

health, safety or welfare imperatively require emergency

action, and incorporates a finding to that effect in its order,

summary suspension of a license may be ordered pending

proceedings for revocation or other action. Such proceed-

ings shall be promptly instituted and determined.

(Added to NRS by 1967, 810)

233B.130 Judicial review of final decisions in contested

cases.

1. Any party aggrieved by a final decision in a con-

tested case is entitled to judicial review thereof under this

chapter. Where appeal is provided within an agency, only

the decision at the highest agency level is reviewable unless

otherwise provided by statute. This chapter does not limit

B-9

utilization of trial de novo review where provided by

statute, but this chapter provides an alternative means of

review in those cases. Any preliminary, procedural or in-

termediate ageucy act or ruling is immediately reviewable

in any case in which review of the final agency decision

would not provide an adequate remedy.

2. Proceedings for review shall be instituted by filing a

petition in the district court in and for Carson City, in and

for the county in which the aggrieved party resides, or in

and for the county where the act on which the proceeding

is based occurred. Unless otherwise provided by specific

statute, a petition shall be filed within 30 days after the

service of the final decision of the agency or, if a rehearing

is held, within 30 days after the decision thereon. Copies

of the petition shall be served upon the agency and all

other parties of record.

(Added to NRS by 1965, 966; A 1969, 318; 1975, 495;

1977, 57)

233B.140 Stay of agency decisions; record of proceed-

ings; taking of additional evidence; limitations on judicial

review; grounds for reversal, modification.

1. The filing of the petition does not itself stay enforce-

ment of the agency decision, unless expressly so provided

by statute. The agency may grant, or the reviewing court

may order, a stay upon appropriate terms.

2. Within 30 days after the service of the petition, or

within further time allowed by the court, agency shall

transmit to the reviewing court the original or a certified

copy of the entire record of the proceeding under review.

B-10

By stipulation of all parties to the review proceedings, the

record may be shortened. A party unreasonably refusing

to stipulate to limit the record may be taxed by the court

for the additional costs. The court may require or permit

subsequent corrections or additions to the record.

3. If, before the date set for hearing, application is

made to the court for leave to present additional evidence,

and it is shown to the satisfaction of the court that the

additional evidence is material and that there were good

reasons for failure to present it in the proceeding before

the agency, the court may order that the additional evi-

dence be taken before the agency upon conditions deter-

mined by the court. The agency may modify its findings

and decision by reason of the additional evidence and shall

file that evidence and any modifications, new findings or

decisions with the reviewing court.

4, The review shall be conducted by the court without

a jury and shall be confined to the record. In cases of al-

leged irregularities in procedure before the agency, not

shown in the record, proof thereon may be taken in the

court. The court, upon request, shall hear oral argument

and receive written briefs.

5. The court shail not substitute its judgment for that

of the agency as to the weight of the evidence on questions

of fact. The court may affirm the decision of the agency

or remand the case for further proceedings. The court

may reverse or modify the decision if substantial rights

of the appellant have been prejudiced because the admin-

istrative findings, inferences, conclusions or decisions are:

(a) In violation of constitutional or statutory provisions;

ene ee oe ENT ts earn nt at nei eR re

B-11

(b) In excess of the statutory authority of the agency;

(c) Made upon unlawful procedure;

(d) Affected by other error of law;

(e) Clearly erroneous in view of the reliable, probative

and substantial evidence on the whole record; or

(f) Arbitrary or capricious or characterized by abuse

of discretion or clearly unwarranted exercise of discretion.

(Added to NRS by 1967, 810; A 1977, 58)

233B.150 Appeals from final judgments of district

court. An aggrieved party may obtain a review of any

final judgment of the district court by appeal to the su-

preme court. The appeal shall be taken as in other civil

cases.

(Added to NRS by 1967, 811)

Ne dO eee

—_

Appendix C

Joseph J. Brecher /

506 15th Street

Oakland, CA 94612

(415) 763-3594

John C. Rogers

P.O. Box 3508

Incline Village, Nev. 89450

(702) 831-3666

Attorneys for Plaintiffs

[Filed June 10, 1076]

United States District Court

District of Nevada

League To Save Lake Tahoe, Inc., a Cali.

fornia membership corporation ; Claudia

Corum; Donna Atherton; Hilton Ather-

ton; Jerry Feldmiller; Marilyn Feld-

miller; Mark Litz; John McCauley;

John Callister; Bruce Bohlman; Delta

Mack; Phil Hannifan; Janet Hannifan;

and Jeff Harry, Civ.

| Plaintiffs, >

R.76-85, BRT

vs.

Roger S. Trounday, Director of the Ne-

vada Department of Human Resources;

State of Nevada, Nevada Department of

Human Resources; Oliver Kahle; and

Ted Jennings,

Defendants. re

AMENDED COMPLAINT

C-2

Plaintiffs allege:

Jurisdiction and Venue

1. The jurisdiction of this Court is based on the citizen

suit provision of § 304(a) of the federal Clean Air Act, 42

U.S.C. § 1857h-2(a) and the federal question statute, 28

U.S.C. §1331(a). The amount in controversy exceeds

$10,000.

2. Venue is in the District Court for the District of

Nevada under Clean Air Act § 304(c) (1), 42 U.S.C. § 1857h-

2(c)(1), since the violation discussed in this complaint is

occurring in this judicial district. This action is being filed

in the Reno Division of this Court pursuant to Local Rule

3(a) because the action arises in Douglas County.

The Parties

3. Plaintiff League To Save Lake Tahoe, Inc. is a pri-

vately-funded non-profit membership corporation, orga-

nized and existing under the laws of the State of California.

It is dedicated to preserving the environmental balance,

scenic beauty, and recreational opportunities of the Tahoe

Basin. Many of its members live and work in the Tahoe

Basin and will be personally affected by the air pollution

violations discussed in this complaint. Plaintiffs Claudia

Corum, Donna Atherton, Hilton Atherton, Jerry Feld-

miller, Marilyn Feldmiller, Mark Litz, John McCauley,

John Callister, Bruce Bohlman, Delta Mack, Phil Hanni-

fan, Janet Hannifan, and Jeff Harry are individuals who

reside in or near the Tahoe Basin. They will be personally

affected by the air pollution violations discussed in this

complaint. The diminution of the value of their property

pee * an a Se

U3

and the increased costs for health care due to these viola-

tions will exceed $10,000 for each of the individual plain-

tiffs.

4. Defendant Roger S. Trounday is the Director of the

Nevada Department of Human Resources. He is charged

with the duty of carrying out the air pollution control laws

of the State of Nevada (N.R.S. §§ 445.401-445.601) pur-

suant to N.R.S. § 445.473(1). In that capacity, he is re-

quired to assess the air quality impact of a project which

is required to obtain a registration certificate under Article

13 of the Nevada Air Quality Regulations issued by the

Nevada Environmental Commission. The Department of

Human Resources is the designated state air pollution

control agency for the purposes of the Clean Air Act under

the terms of N.R.S. § 445.456(1).

5. Defendant Oliver Kahle is the owner and operator

of the Hotel Oliver, planned to be built at Stateline,

Nevada. Defendant Ted Jennings is an owner and the

operator of the Tahoe Palace Hotel, planned to be built at

Stateline, Nevada.

6. The State of Nevada is named as a defendant pur-

suant to N.R.S. § 41.031, which requires the State to be

named in an action against a state agency.

7. The Nevada Department of Human Resources is

named as a defendant pursuant to N.R.S. § 41.031, which

permits suits against state agencies.

Statement of the Claim ~

8. Under § 109(b)(1) of the Clean Air Act, 42 U.S.C.

1857c-4(b)(1), EPA is required to promulgate primary

C-4

ambient air quality standards which are requisite to protect

the public health. EPA has promulgated such standards

for carbon monoxide (CO) at 40 C.F.R. § 50.8. The maxi-

mum CO concentrations permissible under the standards

are 35 parts per million for a one-hour period and 9 parts

per million for an eight-hour period.

9. Section 110(a) of the Clean Air Act, 42 U.S.C.

§ 1857¢-5(a) requires each state to submit to the federal

Environmental Protection Agency (“EPA”) “a plan which

provides for implementation, maintenance, and enforce-

ment” of the primary ambient standards. The State of

Nevada submitted such an implementation plan to EPA

and the portion thereof concerned with the CO standard

was approved and accepted, 40 C.F.R. § 52.1472. That

implementation plan includes the various state statutory

and regulatory provisions discussed in paragraphs 10, 11

and 15.

10. Section 3.2.2 of the Nevada air quality regulations

makes the obtaining of a valid registration certificate a

prerequisite to the construction of any complex source of

air pollution. “Complex source” is defined by N.R.S. § 445.

446(2) as

any property or facility that has or solicits secondary

or adjunctive activity which emits or may emit any

air contaminant for which there is an ambient air

quality standard, notwithstanding that such property

or facility may not itself possess the capability of

emitting such air contaminants. Complex sources

include, but are not limited to (a) highways and roads;

(b) parking facilities . . . (d) recreation, amusement,

sports, or entertainment facilities.

ne a ee RTE ee te Seer e ——

C-5

Sections 13.2.1 and 13.2.4 of the Nevada air quality regula-

tions specifically require a permit application for construc-

tion of any new parking facility or other strueture with

associated parking facilities for 1,000 or more cars.

11. Under §13.1.1 of the Nevada air quality regula-

tions, the owner of a proposed new complex source must

apply to the director of the Department of Human

Resources for a registration certificate and must submit

an environmental evaluation of the project. If the environ-

mental evaluation shows, or if the Director determines that

the source will prevent the attainment or maintenance of

an applicable ambient air quality standard, the Director

may not issue a registration certificate, under the terms

of Regs. § 13.1.3.

12. On August 12, 1974, defendant Kahle submitted an

application for a registration certificate for a new hotel

and casino to be constructed on a 24-acre parcel at High-

way 50 and State Route 19 in Stateline, Nevada. The plans

eall for 33,512 square feet of casino floor space, 960 hotel

rooms, and miscellaneous theatre, dining and meeting

facilities, with parking for 2,400 cars. On the basis of the

environmental analysis and amendments thereto submitted

by defendant Kahle, defendant Trounday concluded that

construction of the hotel-casino as planned would result in

violations of CO ambient standards and accordingly

required major changes in the amount of casino floor

space, highway access plans, and parking garage opera-

tions procedures. With these changes, defendant Trounday

concluded that such violations would not occur and, ac-

cordingly issued registration certificate No. 88 to defendant

Kahle on May 19, 1975. |

C-6

13. On August 12, 1974, defendant Jennings submitted

an application for a registration certificate for a new hotel

and casino to be constructed on a 20-acre parcel across

Highway 50 from the proposed Hotel Oliver in Stateline,

Nevada. The plans call for 32,350 square feet of casino

floor space, 560 hotel rooms, and various convention and

theatre facilities, with parking for 1,600 cars. On the basis

of the environmental analysis submitted by defendant

Jennings, defendant Trounday concluded that construction

of the hotel and casino as planned would result in viola-

tions of ambient CO standards, and accordingly required

major changes in the amount of casino floor space, highway

access plans, and parking garage operations procedures.

With these changes, defendant Trounday concluded that

such violations would no longer occur and thus issued

registration certificate No. 84 to defendant Jennings on

April 15, 1975.

14. The findings by defendant Trounday that construc-

of the two hotel-casinos described in paragraph 10 and 11

were based on improper assumptions and did not take into

account all the evidence available to him. As such, those

findings constituted an abuse of discretion. Specifically,

his analysis did not take into account the situation that

would oceur under the most adverse meteorological condi-

tions and failed to consider CO levels within the project

areas. Upon the request of plaintiffs, defendant Troun-

day’s subordinates recalculated expected CO levels within

the hotel grounds under adverse conditions using the same

methodology that had been employed to asses the appli-

cants’ environmental analyses. The results of that recaleu-

lation showed that the one-hour CO standard would be

C-7

exceeded by 7% and, by extrapolation, that the eight-hour

standard would be exceeded, by over 100%. In addition,

defendant Trounday ignored evidence that the CO stand-

ards are already being exceeded at various locations along

Highway 50 and that the additional traffic on the highway

generated by the two casinos would cause even more severe

and frequent violations.

15. Since the construction of the Oliver and Tahoe

Palace Hotels will cause violations of the ambient air

quality standards for CO, defendants Kahle and Jennings

could not properly be issued registration certificates under

N.R.S. § 445.491(1)(b)(2) aed Nevada air quality regula-

tions § 13.1.3. Therefore, construction at the two hotels

violates § 3.2.2 of the regulations. This constitutes a viola-

tion of an emission standard or limitation as that term is

used in Clean Air Act §304(a)(1), 42 U.S.C. § 1857h-

2(a)(1).

16. On March 2, 1976, plaintiffs’ attorney notified

defendants of the violation described above, pursuant to

the requirements of Clean Air Act §304(b), 42 U.S.C.

§ 1857h-2(b) and 40 C.F.R. Part 54. More than 60 days

has elapsed from the date on which the notice was sent.

17. Because of the unlawful action of defendant Troun-

day described in paragraphs 14 and 15 and the unlawful

construction activity by defendants Kahle and Jennings,

the ambient standards for carbon monoxide will be fre-

quently violated. As a result, the health and welfare of the

plaintiffs will be subject to irreparable injury.

C-8

| Relief Requested

Wherefore, plaintiffs pray:

1. That this court enter its judgment declaring that

registration certificate No. 88, issued to defendant Kahle

and No. 84, issued to defendant Jennings are null and void.

2. That defendants Kahle and J ennings be ordered to

cease construction on the Hotels Oliver and Tahoe Palace

until valid registration certificates are obtained.

3. That plaintiffs be awarded their reasonable costs of

litigation, including reasonable attorney’s and expert wit-

ness’ fees, as permitted by Clean Air Act § 304(d), 42

U.S.C. § 1857h-2(d). i

4. That plaintiffs have such other and further relief

as this Court may deem just and proper.

Respectfully submitted:

/s/ JOSEPH J. BRECHER

Joseph J. Brecher

506 15th Street

Oakland, Ca. 94612

(415) 673-3594

John C. Rogers

P.O. Box 3508

Incline Village, Nev. 89450

(702) 831-3666

Dated: June 2, 1976

i i se NL at aA pl li once Ot cc itt

Appendix D

State of Nevada

Environmental Commission

Administrative Rules

Adopted December 1, 1975

Effective January 9, 1976

Environmental Commission

Capitol Complex

Carson City, Nevada

D-2

State of ‘Nevada

Environmental Commission

Administrative Rules

Rule 1: Definitions

1.1.1—“Appellant” means any person requesting a

hearing before the Commission in compliance with Chap-

ter 445 or 444 of NRS, or applicable sections of the State

Air Quality Regulations, State Water Pollution Control

Regulations, or State Solid Waste Management Regula-

tions adopted pursuant thereto, or any person required by

the Director to appear before the Commission.

1.1.2—“Commission” means the State Environmental

Commission; or a panel of three or more members of the

State Environmental Commission as per NRS Chapter 445,

Sections 277 and 499, where appropriate.

1.1.3—“Director” means the Director of the Department

of Human Resources or his designee, or person designated

by or pursuant to a county or city ordinance or regional

agreement or regulation to enforce local air pollution con-

trol ordinances and regulations.

1.1.4—“Person” means the State of Nevada or any in-

dividual, group of individuals, partnership, firm, company,

corporation, association, trust, estate, political subdivision,

administrative agency, public or quasi-public corporation

or other legal entity.

1.2—The meanings ascribed to words not included in

Rule 1 shall be in accordance with applicable sections of the

State Air Quality Regulations, State Water Pollution Con-

trol Regulations, or State Solid Waste Management Regu-

lations and Chapter 445 or 444 of NRS.

a Nee ee Se NS ae atin dle De oe ee

a

D-3

Rule 2: Availability of Regulations and Forms

2.1—The Commision will furnish to any member of the

public, upon request, a copy of all regulations and pro-

cedures adopted or used by the Commission in the dis-

charge of its function.

2.2—Also available for public inspéction are all final

orders, decisions, and opinions except those expressly

made confidential or privileged by statute.

Rule 3: Petitions for Adoption, Filing, Amendment,

Repeal of Regulations, Required Action by Commission.

3.1—Any interested person may petition the Commission,

by requesting in writing in the format of form #1 (infra),

for the adoption, filing, amendment or repeal of any regu-

lation and shall accompany his petition with relevant data,

views, and arguments.

3.2—Upon submission of such a petition, the Commis-

sion shall, within thirty (30) days, either deny the petition

in writing, stating its reasons, or initiate regulation-making

proceedings in accordance with NRS 445.204 and 445.207,

or 445.466, or 444.560, whichever is/are applicable.

Rule 4: Public Inspection of Regulations, Orders, De-

cisions and Opinions; Validity

No Commission regulation, rule, final order or decision

shall be valid or effective against any person or party; nor

may it be invoked by the Commission for any purpose,

until it has been made available for public inspection as

required by Rule 2, except that this provision shall not

be applicable in favor of any person or party who has

actual knowledge thereof.

D-4

Rule 5: Effective Date of Regulations .

5.1—Regulations shall become effective thirty (30) days

after.an original:and three (3) :duplicate copies of each

regulation are filed with the Secretary of State, except

where: *

_ 5,1.1—a later date is required by statute;

5.1.2—an earlier dateis permitted by statute;

5.1.3—a later date is specified in the regulation ; ; or

5. 1 4—the Commission finds that an emergency exists,

and such finding i is concurred in by the Governor by writ-

ten endorsement upon ‘the original regulation.

Rule. 6: Petitions for Declaratory Orders, Advisory

Opinions; Form and Disposition

6.1—Any member of the public may gelltinn the Conn:

mission fora declaratory order and/or an advisory opinion:

as to the applicability of any statutory provision, Com-

mission regulation or decision. (See form #2 infra.)

. 6.2—Upon submission of such a petition in the format of

form #2, the Commission shall within thirty (30) days

issye such a declaratory order and/or advisory opinion in

writing stating its reason(s) for such action.

6. 3—Declaratory orders disposing of petitions: in such

cases ‘shall have the same ‘status as Commission decisions.

A copy of the declaratory order and/or advisory opinion

shall be mailed to the petitioner.

D-5

Rule 7: Judicial Declaratory Judgment Actions to De-

termine Validity, Applicability of Regulations

7.1—After complying with Rule 6 (supra) any member

of the public may seek a judicial determination of the

validity or applicability of any regulation in a proceeding

for a declaratory judgment in the district court in and for

Carson City, or in and for the county where the plaintiff

resides, when it is alleged that the regulations, or its pro-

posed application, interferes with or impairs, or threatens

to interfere with or impair, the legal rights and privileges

of the plaintiff.

7.2—The Commission shall be made a party to any

action filed under Rule 7.1. The Commission may institute

an action for declaratory judgment, as provided in Rule

7.1, concerning any regulation adopted and filed by it or

any other agency.

&

7.3—Actions for declaratory judgment provided for in

Rules 7.1 and 7.2 shall be in accordance with the Uniform

Declaratory Judgments Act (Chapter 30 of NRS) and

the Nevada Rules of Civil Procedure. In all actions under

Rules 7.1 and 7.2, the Attorney General shall, before judg-

ment is entered, be served with a copy of the petition, and

shall be entitled to be heard.

Rule 8: Request for Hearing to Appeal Action of the

Department .

Any person requesting a hearing before the Commis-

sion pursuant to Chapter 445 or 444 of NRS may do so

by filing his request, within ten (10) days of notice of

action of the Department, with the Environmental Com-

D-6

mission, 1209 Johnson Street, Capitol Complex, Carson

City, Nevada, 89710 (in the format of form #3 infra).

Rule 9: Notice of Hearing

The Secretary of the Environmental Commission shall

schedule a hearing to be held within twenty (20) days

after receipt of the request for hearing, or an order to

appear before the Commission. All of the parties shall be

notified by registered or certified mail of the date thereof

which shall be no less than five (5) days after the date of

notification. The notice shall include:

9.1—a statement of the time, place, and nature of hearing:

9.2—a statement of the legal authority and jurisdiction

under which the hearing is to be held;

9.3—a reference to the particular sections of NRS and/

or the Air Quality Regulations, Water Pollution Control

Regulations, or Solid Waste Management Regulations al-

legedly violated ;

' 9.4—a brief and concise statement of the matters as-

serted or the issues involved. 4

Rule 10: Subpoenas

10.1—Subpoenas to compel attendance of any persons at

a hearing or to require the production of books, records,

or other documents may be issued by the Commission. Re-

quests for the issuance of subpoenas shall be made to the

Commission in writing no less than five (5) days prior

to the hearing date, setting forth the reason and necessity

for such subpoena(s); provided that, upon good cause

shown, subpoenas may be issued at the request of any

party to the hearing at any time. The Commission may

issue any subpoena(s) on its own initiative without request.

oa «see

2 NLL

D-7

10.2—All costs incident to subpoenas issued at the re-

quest of appellant shall be borne by the appellant. The

Commission may demand payment of such costs prior to

issuance of subpoenas.

Rule 11: Hearing Panel

Three or more members of the Commission shall con-

stitute a proper panel, where appropriate, in accordance

with Chapter 445, Sections 277 and 499, and a majority

of those present must concur in any decision which shall

be in writing and of public record.

Rule 12: Preliminaries to Hearing

12.1—Upon good cause shown, the Commission may va-

cate and reset the time of hearing.

12.2—Upon good cause shown, the Commission may

transfer the place of hearing to a more appropriate loca-

tion, taking into consideration the convenience and fairness

to the witness and the parties.

12.3—Unless otherwise provided by law, informal dis-

position may be made by all involved parties at any time

of any contested case or matter.

Rule 13: Appearance of Parties; Order of Presentation

13.1—The Parties may appear in person and may be

represented by counsel. All testimony shall be given under

oath, and recorded verbatim by human or electronic means.

The matter shall then be heard in the following manner:

13.1.1—prior to testifying, the witness shall state his

name, address, and business, employment or position. Sub-

sequent comments and testimony may be preceded by name

only;

D-8

13.1.2—opening statement and presentation of State’s

evidence followed by cross-examination by appellant;

13.1.3—opening statement and presentation of evidence

by appellant followed by cross-examination by State;

13.1.4—The parties may then respectively offer rebutting

testimony only, unless the Commission, in its discretion,

permits additional evidence. In the exercise of its discre-

tion, the Commission shall consider the relevance and ne-

cessity of the new matter expected to be brought out by

the additional testimony ;

13.1.5—closing argument of State, closing argument of

appellant, rebuttal by State.

13.2—Hearings shall be public unless and until such

time as confidential information, within the meaning of

Chapter 445 of NRS or applicable sections of the State

Air Quality Regulations, or Water Pollution Control Reg-

ulations, must be admitted to the record, at which time

the hearing shall be closed.

Rule 14: Rules of Evidence

14.1—Evidence of the type commonly relied upon by

reasonable and prudent men in the conduct of their affairs

shall be admitted unless such admission is otherwise pre-

cluded by law.

-14.2—All irrelevant, immaterial, and unduly repetitious

evidence shall be excluded.

14.3—All privileges recognized by law shall be given full

effect.

14.4—Duly authenticated copies of original documents

that are not readily available may be received in evidence.

Neo alt ele Wate Linh Eel AS AUER tS i ont

eee ae

SPOT, LG

ee FO LTO OI OTE IIs 1 em pe

D-9

14.5—All objections to evidentiary offers shall be noted

in the record.

14.6—The Commission, State and appellant may call and

examine witnesses, introduce exhibits, cross-examine op-

posing witnesses on any relevant matter even though such

matter was not covered in direct examination, impeach

any witness regardless of which party called the witness to

testify, and rebut evidence.

14.7—Notice may be taken of judicially cognizable facts

and of generally recognized scientific and technical facts

within the specialized knowledge of the Commission or other

expert witnesses subpoenaed by the Commission. Any ag-

grieved or affected party shall be afforded the opportunity

to discredit or rebut matters of which official notice has

been taken.

14.8—The expertise, technical competence and specialized

knowledge of the Commission or State may be utilized in

determining the admissibility of evidence, as well as in the

evaluation of the evidence.

Rule 15: Commission Findings; Recommendations

15.1—At the conclusion of the hearing the Commission

shall take the case under submission, and shall notify the

appellant by certified mail of its findings and recommenda-

tions in writing within thirty (30) days after the date of

the hearing.

15.2—Final recommendations shall be in writing and

shall separately state findings of fact and conclusions of

law. Findings of fact and recommendations shall be based

upon substantial evidence. Findings of fact shall include

a concise statement of the evidentiary facts supporting the

findings.

D-10

Rule 16: Transcripts

Transcripts will be furnished to any party upon payment

of the fees preseribed by the Commission.

Rule 17: Judicial Review of Final Decisions in Con-

tested Cases

17.1—Any party aggrieved by a final decision in a con-

tested case is entitled to judicial review thereof under NRS

Chapter 233B. Any preliminary procedural or intermediate

Commission act or ruling is immediately reviewable in any

case in which review of the final Commission decision would

not provide an adequate remedy.

17.2—Proceedings for review shall be instituted by filing

a petition in the district court in and for Carson City, or

in and for the county in which the aggrieved party resides,

or in and for the county where the act on which the pro-

ceeding is based occurred, within thirty (30) days after

the service of the final decision of the Commission, or, if

a rehearing is held, within thirty (30) days after the

decision thereon. Copies of the petition shall be served upon

the Commission and all other parties of record.

Adoption: Now therefore, by affirmative vote of the

Nevada State Environmental Commission, these rules of

procedure are hereby adopted and compliance therewith

ordered.

To become effective January 9, 1976.

/s/ ROLAND WESTERGARD

Roland Westergard,

Vice-Chairman

Environmental Commission

D-11

Form #1

Form for Petitioning the Commission for Adoption,

Filing, Amendments, or Repeal of Commission Regulations

1. Name, address, telephone number and signature of

petitioner. Also their representative capacity if applicable.

2. Specific type of petitioner (individual, partnership,

corporation, or other) and the exact business or occupation,

including a description of the business or occupation if

necessary.

3. Exact and specific nature of changes sought, includ-

ing delineation of the regulations, statutory provisions, or

Commission decisions involved.

4. Petitioner’s reason(s) for requesting change(s), in-

cluding whether in self interest, in the public interest, or

any other legal entity’s or individual’s interest.

5. An expression of what particular group(s) of people

would be most affected either positively or negatively by

the proposed change(s).

6. Date of petition.

D-12

Form #2

Form for Petitioning the Commission for a

Declaratory Order or Advisory Opinion

1. Name, address, telephone number, and signature of

petitioner. Also their representative capacity if applica-

ble.

2. Specific type of petitioner (individual, partnership,

corporation, or other) and the exact business or occupation

including a description of the business or occupation if nee-

essary.

3. Exact and specific nature of order or opinion sought,

including delineation of the regulations, statutory provi-

sion, or Commission decision involved.

4. Petitioner’s reason for requesting the declaratory

order and/or advisory opinion including whether in behalf

of self interest, the public interest, or any other legal en-

tity’s or individual’s interest.

5. An expression of what particular group(s) of people

would be most affected, either positively or negatively, by

the declaratory order, and/or advisory opinion.

6. Date of petition.

Date of Request:

D-13

Form #3

Form for Requesting an Appeal Hearing

Before the Commission

Name, address, telephone number, and signature of applicant:

Name:

Address:

Telephone:

Signature:

Representative Capacity (if applicable):

Specify type of applicant: Individual, Partnership, Corpora-

tion, or Other:

Other person or persons authorized to receive service of notice.

Complete description of the business or activity and the loca-

tion of the activity involved in the request:

Nature of the appeal and grounds therefor:

Section or sections of the State Air Quality Regulations, Water

Pollution Control Regulations, or Solid Waste Management

Regulations, or NRS sections involved in the appeal:

Approximate time in hours and minutes necessary for delivery

of oral testimony and reading of prepared statements as ad-

missible evidence to be entered in the record: